NOTES on Richard Brandt (1910-1997): Criminal Justice

Brandt

Richard Brandt discusses the issue of criminal justice in his book Ethical Theory: The Problems of Normative and Critical Ethics. First, Brandt asks, “What is meant by an ‘examination of the ethical foundations of the institutions and principles of criminal justice’?” Brandt answers this question by writing: “… it is to identify the more important valid ethical principles that are relevant to the institution of criminal justice and to furnish a model in their use in criticism or justification of important features of this institution.” In doing this, Brandt feels that two important questions must be answered:

1) “What justifies anyone in inflicting pain or loss on an individual on account of his past acts?” and

2) Is there a valid general principle about the punishments proper for various acts?”

Brandt reaches two conclusions at the beginning of his essay:

1) Since punishment involves treating the person unequally in comparison with persons who are not being punished, that treatment must be shown to be required by moral principles; in other words, the laws must be just, and

2) These just laws must be applied justly; that is, a fair trial must be guaranteed for all.

In his essay, Brandt writes about four views of punishment:

1) deterrence. By punishing criminals, we deter other people from acting like criminals,

2) rehabilitation. By punishing criminals, we make them fit to become members of society,

3) protection of society. While locked up, criminals cannot perpetuate outrages on society, and

4) retribution. Criminals deserve their punishment.

Of these views of punishment, three are especially teleological: deterrence, rehabilitation, and protection. (Readers will remember that utilitarianism is a teleological ethical theory.) Deontologists, however, are especially concerned with retribution. (Readers will remember that Kantian ethics is a deontological ethical theory.)

As we will see, Brandt takes a utilitarian perspective on the issue of criminal justice; in particular, he is in agreement with rule utilitarianism. In looking at criminal justice, Brandt writes about traditional utilitarian theory, which justifies our present system of punishment with three main reasons:

1) “People who are tempted to misbehave, to trample on the rights of others, to sacrifice public welfare for personal gain, can usually be deterred from misconduct by fear of punishment, such as death, imprisonment, or fine,”

2) “Imprisonment or fine will teach malefactors a lesson; their characters may be improved, and at any rate a personal experience of punishment will make them less likely to misbehave again,” and

3) “Imprisonment will certainly have the result of physically preventing past malefactors from misbehaving during the period of their incarceration.”

Utilitarianism can also help us decide about the severity of punishments: “Punishment should have precisely such a degree of severity (not more or less) that the probable disutility of greater severity just balances the probable gain in utility (less crime because of the more serious threat).” Jeremy Bentham gives good advice when he says (in a paraphrased passage) that punishment needs to be severe enough to serve as a deterrent. If the penalty for bank robbery were a $10 fine, no one would be deterred by the $10 fine from robbing banks.

Bentham also believed in extenuating circumstances that would lessen the punishment or perhaps result in no punishment at all. Five of these circumstances are:

1) “the fact that the relevant law was passed only after the act of the accused,”

2) “that the law had not been made public,”

3) “that the criminal was an infant, insane, or was intoxicated,”

4) “that the crime was done under physical compulsion,” and

5) “that the agent was ignorant of the probable consequences of his act or was acting on the basis of an innocent misapprehension of the facts.”

According to Brandt, “Bentham’s account of the logic of legal ‘defenses’ needs amendment. What he should have argued is that not punishing in certain types of cases (cases where such defenses as those just indicated can be offered) reduces the amount of suffering imposed by law and the insecurity of everybody, and that failure to impose punishment in these types of case will cause only a negligible increase in the incidence of crime.”

Brandt also defends the utilitarian theory of punishment against several charges made against it. The first charge is that utilitarianism requires “strict liability”; if someone is guilty of doing something wrong, they should be punished because of this. However, Brandt believes that this charge is unfounded. A utilitarian must consider the long-term stability of society. If we did not make such exceptions as Bentham recommended, the result would be a lack of stability in society. As Brandt writes, “… the utilitarian can point out that abolition of the standard exculpating excuses would lead to serious insecurity. Imagine the pleasure of driving an automobile if one knew one could be executed for running down a child whom it was absolutely impossible to avoid striking!”

The next criticism Brandt responds to is that utilitarianism “must view imprisonment for crime as morally no different from quarantine.” For example, lepers used to be kept apart from society — for the good of that society. The same applies to imprisoned criminals. However, all of us would agree that there is a big difference between the cases. Of course, Brandt agrees that the cases are different; the leper did not to choose to contract leprosy, but the criminal did choose to do evil. Therefore, we should try to make the leper comfortable, but no such obligation applies to the criminal.

Another criticism Brandt responds to is that “the utilitarian must approve of prosecutors or judges occasionally withholding evidence known to them, for the sake of convicting an innocent man, if the public welfare really is served by so doing.” However, Brandt responds that if we allowed this, it would have a bad effect on society; therefore, this is something we cannot allow.

Brandt also writes about Kant’s deontological theory, which states that punishment is required because of retribution. As Kant writes, “Juridical punishment … can be inflicted on a criminal, never just as instrumental to the achievement of some other good for the criminal himself or for the civil society, but only because he has committed a crime.” However, Brandt advances five reasons why he rejects the retribution principle:

1) “Our ethical theory is simpler without this principle ….”

2) “We shall see that some people today question the whole practice of assigning ‘penalties to fit the crime.’ They think treatment of the criminal should be criminal-centered, not crime-centered,”

3) “The retributive principle, in whichever form we take it, asserts in effect that a principal aim of the law is to punish either moral guilt or intentional deviation from subjective obligation. But if so, then it ought to punish merely attempted crimes as severely as successful crimes”; in other words, the retributive principle requires that a person who attempts murder be punished as severely as a person who actually commits murder because both persons’ intent was the same,

4) “The ‘moral reprehensibility’ form of the theory is open to serious objection. According to it, laws should be so framed that no one will be punished, no matter what he does, if he is morally blameless”; in other words, a person who commits a crime out of conscience cannot be punished, and

5) “The lex talionis [lex talionis is literally ‘the law of retaliation’; that is, an eye for an eye, a tooth for a tooth] version of the theory has its special difficulties. For instance, it is inconsistent with recognition of a difference between first degree murder, second degree murder, and manslaughter on account of provocation, since the degree of subjective obligation is equal in all these cases.”

Brandt also rejects W. D. Ross’ modified deontological theory. Although Brandt believes that Ross’ theory is “slightly superior” to Kant’s, he finds “no reason for adopting it in preference to the much simpler rule-utilitarian theory” he has already argued for.

Finally, Brandt makes some utilitarian suggestions for reform of the criminal justice system: According to some thinkers, “we should extend, to all criminal justice, the practices of juvenile courts and institutions for the reform of juvenile offenders. Here, retributive concepts have been largely discarded at least in theory, and psychiatric treatment and programs for the prevention of crime by means of slum clearance, the organization of boys’ clubs, and so forth, have replaced even deterrence as guiding ideas for social action.”

Putting these ideas in action means we would first use the courts to determine guilt; then, if someone is found guilty, experts would decide on the offender’s treatment. The experts would also decide when the offender was ready to return to society. This type of treatment would be “criminal-centered treatment, not crime-centered treatment.”

Here are three objections to this proposal:

1) Such a proposal ignores the deterrent effect of punishment. To this, Brandt replies that ‘deterrent’ punishment does not seem to provide much of a deterrence to criminal activity.

2) Such a proposal may mean more danger for police officers, since offenders may believe that the punishment for killing a police officer may not be very severe. To this, Brandt replies that this system is already in effect in Scandinavian countries, and he suggests that it seems to be working.

3) What we know about psychiatry and criminology is not advanced enough for this system to work. The way an offender is treated will depend on the personal likes and dislikes of a theorist. To this, Brandt replies that now punishment depends on the personal likes and dislikes of our judges.

In conclusion, Brandt points out an advantage of his proposed system: “An institution of criminal justice operating on such basic principles would come closer to our views about how parents should treat their children, or teachers their students, than the more traditional practices of criminal justice today.”

Note: the quotations by Richard Brandt that appear in this essay come from his book Ethical Theory: The Problems of Normative and Critical Ethics (Englewood Cliffs, NJ: Prentice-Hall, 1959).

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